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  • Push to solve custody disputes outside courts
  • By Carol Nader
  • 20/05/2010 Make a Comment (7)
  • Contributed by: MrNatural ( 12 articles in 2010 )
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SEPARATING couples in disputes over children will be able to have a person other than a judge decide who gets custody, in a radical change proposed by the federal government to reduce the number of families that end up in court.

The change, which Attorney-General Robert McClelland wants to introduce from July next year, would mean that separating couples with children will be able to choose arbitration - where a family mediator can decide on custody if attempts at mediation break down - rather than go through the more expensive court process. Arbitration is already permitted to settle property disputes.

Currently, it is compulsory for most couples who want to settle parenting disputes in court to attempt mediation first. If that fails, they can go to a family law court.

In another big change, Mr McClelland is proposing to expand compulsory mediation to make it also apply to couples who want to go to court to settle property and spousal maintenance issues. Exceptions apply in some cases, such as in family violence.

The push for a greater emphasis on mediation comes a week after the government cut funding for free mediation in family relationship centres, down from three free hours to one free hour for individuals who earn more than $50,000 from July next year. After that, an hourly fee of $30 applies. The free mediation will only apply to disputes about children, not property.

Mr McClelland told The Age he was still consulting on the proposed changes, which would enable couples to choose between mediation, conciliation or arbitration. He said the change was driven by questions around whether it was appropriate for decisions about children to be made in a litigious way, and a belief that family relationship centres don't have enough "grunt" to make decisions.

"I'm convinced, regrettably however, there will always be a need for (family law courts) because there will always be those entrenched matters and complex issues of domestic violence and even third-party issues regarding grandparents, which are more complicated," he said.

"We expect there will be a significant reduction in matters going to court, but it will take time for that culture to shift." He said that in his experience, practitioners could solve most cases.

"In this situation, where a respected third party is making a recommendation, I would expect that a lot of matters will be solved this way without having to go to court," he said.

Arbitration would still involve an attempt at mediation first. The practitioner's decision would be enforceable in court, and the possibility of an appeals process through court is being explored. Other options being considered are an administrative review if there is proof that the decision maker has erred, or a presumption that the arbitrator's decision would stand other than in exceptional circumstances, such as bias.

Mr McClelland said the arbitration would take place mainly in government-funded family relationship centres, legal aid commissions and by accredited mediators. The practitioner would have to bear in mind the contentious laws around shared parental responsibility when making decisions.

Family Relationship Services Australia executive director Samantha Page said there was a role for arbitration in the family law system.

"If it is additional to, rather than an alternative (to mediation), that will allay a lot of our concern," she said.

"The main game for family law should be what's in the best interests of children, not how quickly can we move them through the system or how much does it cost?"


    By:BigJoe from Vic, Aust on May 27, 2010 @ 9:07 am
    Arbitration...hmmm. A softer and more sensible approach for families? Let's wait to see the process rolled out first
    By:Billy from from Silly land, of OZ on May 26, 2010 @ 2:07 pm
    Theres only one solution to our searation and divorce strife folks! Let both arents work it out together. Use the system that promotes mum & dad working through what needs to be done.
    By:Stephen from South Australia, Australia on May 26, 2010 @ 1:40 pm
    What hapens if one parent wants to choose arbitration and the other not. What options will there be? Will it be like what Rambo said with the Federal Magistrates Courts being changed in due course and is this just PR spin for the public?
    By:spongebob from WA, AUST on May 25, 2010 @ 3:14 pm
    All government intervention into the family is bad, no matter whats being proffered today! Can anyone really trust them after the past 35yrs of carnage?
    By:Moses from QLD, Australia on May 25, 2010 @ 9:47 am
    The answer my friends is blowing in the wind....
    By:Rambo from NSW, AUSTRALIA on May 25, 2010 @ 8:11 am
    Yeah sounds good but ain't that what the FMC's were for and look what happened to them. Overrun by lawyers, long delays and still used their legal jargon when it suited them.
    By:Michael K from Vic, Australia on May 24, 2010 @ 2:09 pm
    On the face of it, it looks like one of the better moves for family in so far as keeping family matters at a lower level.

    Hopefully both parents will not have been divided by lawyers and litigation having a far better chance to negotiate between themselves.

    Without the huge gains on offer perhaps more parents will even do shared parenting.

    Although there are possibly other agendas, such as creating more bureaucracy and the quasi legal fraternity, I think the article has merit with more employment as a spin off.

    Time will tell of course.

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